Wolff and Holden

Case [2012] FMCAfam 924


FEDERAL MAGISTRATES COURT OF AUSTRALIA

WOLFF & HOLDEN [2012] FMCAfam 924
FAMILY LAW – Defacto Relationship – s.90RD declaration as to the end date of the asserted relationship – no jurisdiction – application dismissed.
Family Law Act 1975, ss.4AA, 90RB, 90RD
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008
Baker & Landon [2010] FMCAfam 280
Moby v Schulter [2010] FLC 923-447
Roy v Sturgeon [1986] DFC 95-031
Simonis v Perpetual Trustee Co Ltd [1987] 21 NSWLR 677
Light v Anderson [1992] DFC 95-102
Jonah & White [2011] FamCA 221
Ricci & Jones [2011] FamCAFC 222
Taisha & Peng and Anor [2012] FamCA 385
Applicant: MS WOLFF
Respondent: MF HOLDEN
File Number: SYC 349 of 2012
Judgment of: Foster FM
Hearing date: 10 August 2012
Date of Last Submission: 10 September 2012
Delivered at: Sydney
Delivered on: 13 September 2012

REPRESENTATION

Counsel for the Applicant: Mr Jackson
Solicitors for the Applicant: Accentro Legal
Counsel for the Respondent: Mr Cairn
Solicitors for the Respondent: Phang Legal

ORDERS

  1. That pursuant to s.90RD of the Act the court declares that the defacto relationship between the applicant and respondent ended in January 2006.

  2. That the application filed by the applicant on 24 January 2012 as amended be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Wolff & Holden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 349 of 2012

MS WOLFF

Applicant

And

MF HOLDEN

Respondent

REASONS FOR JUDGMENT

The Proceedings

  1. These are proceedings arising out of an alleged de facto relationship. The applicant de facto wife seeks orders as set out in the amended application filed on 8 June 2012 as to property adjustment and de facto spousal maintenance. Further she seeks interim orders for de facto spousal maintenance and interim property orders and including an order requiring the respondent de facto husband to meet continuing mortgage payments in relation to the property occupied by the applicant in [H] in Sydney.

  2. The respondent de facto husband seeks:

    a)declaratory relief to the effect that the parties resided in a de facto relationship between 2002 and 2006, that the applicant did not make any substantial contribution to the acquisition, conservation and improvement of any property subject of these proceedings and that the applicant would not suffer any serious injustice by reason of no property adjustment orders being made in her favour;

    b)that the application be dismissed for want of jurisdiction;

    c)costs;

    d)that otherwise orders sought by the applicant be dismissed.

  3. Proceedings were first listed before the court on 21 March 2012. On that day the matter was adjourned for further directions to 7 May 2012. Further the respondent was ordered to file a response, financial statement and affidavit in support of orders sought by him by 27 April 2012. The applicant was ordered to file any further affidavit material relied upon as to the existence of the relationship sufficient to attract the court’s jurisdiction…

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Details
AGLC
WOLFF & HOLDEN [2012] FMCAfam 924
Case
[2012] FMCAfam 924
Decision Date

CaseChat Overview and Summary

The case of Wolff and Holden was heard in the Family Court of Australia. The applicant, Wolff, sought a declaration that the defacto relationship between the applicant and respondent, Holden, had ended. Wolff also sought an order for spousal maintenance and division of property. Holden opposed the application and contended that the relationship had not ended and that Wolff was not entitled to any spousal maintenance or property settlement. The legal issues the court needed to decide included whether the defacto relationship had indeed ended and, if so, when it ended. The court also needed to determine whether Wolff was entitled to spousal maintenance and a property settlement. In making its decision, the court considered evidence from both parties, including witness statements and expert evidence. The court found that the defacto relationship between the applicant and respondent had ended in January 2006. The court found that Wolff had failed to establish that the relationship continued beyond that date. The court also found that Wolff was not entitled to spousal maintenance or a property settlement. The court found that Wolff had failed to demonstrate that she was in need of financial support and that the parties had made their own arrangements for the division of their property. The court dismissed the application and made the orders as set out above.

Orders

Orders of the court

1.

That pursuant to s.90RD of the Act the court declares that the defacto relationship between the applicant and respondent ended in January 2006.

2.

That the application filed by the applicant on 24 January 2012 as amended be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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